Pontello, J. v Sinfield, E.R

[1990] FCA 626

JUDGMENT NO. ..6.%.6../..%-

NOT SUITABLE FOR GENERAL DISTRIBUTION

GENERAL DIVISION j

BETWEEN :  JOHN PONTELLQ

Applicant

AND :  ERIC RAYMOND SINF-

~espondent

C O N : Burchett J.
PLACE: Sydney

DATE : 5 October 1990

12 NOV 1990

REASONS FOR JUDCMENT FEDERAL COURT OF I

AUSTRALIA

PRINCIPAL	/I
REOlSTRY

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I do not think that it requires much emphasis from me, although I think I should very briefly repeat what the defendant, I am sure, has had made abundantly clear to him already, that these offences are regarded by the Australian Parliament as significant and serious matters. The maximum penalties prescribed, including as they do imprisonment, make that sufficiently plain.

In hie favour, the defendant acknowledged, with considerable frankness, very promptly after the investigation was launched, not only that he had in his possession the illegal tapes in question, but also that he knew it was	particularly to his frank admission, I accept as genuine.	illegal; and he has expressed contrition which, having regard
There is evidence of the opinions of persons who know him, and are persons of credit, that he is not likely to offend again, and I accept that also.
I think it is plain, on the other hand, that the offences were committed for gain. The circumstances no doubt involved some temptation. The running of a business which is in a parlous financial position commonly subjects people to temptations. The defendant plainly recognises that that is very far from an excuse, but it does provide some explanation, and some reason to think that, as he now accepts the position and is endeavouring to terminate the business, there is the better ground for the confidence which I do feel that he will not offend again. He will, in fact, remove the particular temptation from himself.
It is necessary to take into account his age of now 59 years, and his health. He has had very major surgery. He is in a financial position which makes it extremely difficult to
with the offences could in fact be paid. This is an aspect of envisage that any penalty of a financial kind commensurate
the case which has given me cause for anxious consideration. On the one hand, the offences appear to call for some pecuniary penalty of a significant nature. But on the other hand, if I were to impose such a penalty, on the evidence, the assets are simply not there from which it could be paid, and the consequence might be to bring about an almost inevitable breach of any recognizance which made the payment of such a penalty a condition. I do not think that I should extend mercy of such emptiness to the defendant.
Having in mind all those circumstances, and having regard to the fact that at 59 he has never offended before, or at any rate has no prior convictions, and it is not suggested has ever offended before, it seems to me that I ought, in the special circumstances of this case, apply the provisions of 8.20 of the Act without utilising sub-para.(3) of para.a of sub-sec.1.
It is necessary under sub-sec.2, when a court proposes to release a person under para. l(a) - and I should add that here
there is no opposition from the prosecution to my doing that,
although it was submitted that I might utilise sub-para. (3) -
it is necessary that the court shall, before making the order, explain or cause to be explained to the person, in language likely to be readily understood by him, the purpose and effect of the proposed order, the consequences that may follow if he
conditions of the proposed order, and that any recognizance fails without reasonable cause or excuse to comply with
given in accordance with the order may be discharged or varied under s.20AA.
Section 20AA does in fact provide for any one of a number of persons to have the right to apply to the court for discharge. Those persons do include the person who entered into the recognizance. They also include an authorised person, a surety, and a probation officer. And the court may on an application, if it is satisfied, and notice has been given, and the conduct of the person has been such as to make it unnecessary that he remain bound by the recognizance, discharge the recognizance. The court may also vary the recognizance by extending or reducing its duration, by altering its conditions, by inserting additional conditions, by reducing any liability, or by altering certain of its terms. And there are further provisions contained within s.20AA dealing with any such application. An authorised person in that section means the Attorney-General, the Director of Public Prosecutions, or certain other persons. I think all that I need say about that at the moment is that any recognizance can be discharged or varied. There is provision for it under that section.
The order proposed is that you be released, without sentence being passed on you, on your entering into a recognizance in the sum of $1,000 on condition that you will
And the purpose and effect of that are that in all the be of good behaviour for a period of three years from today.
circumstances of this case it seems to me appropriate that the seriousness of the offences be brought home to you by a formal order of that kind, but at the same time that you not at this stage be subjected to further penalties than those which the very bringing of the prosecution and the circumstances inevitably involve, and that you have the opportunity to demonstrate that there is no need of anything further by
future conduct which does not involve anything that is other than of good behaviour. That kind of legal requirement is not left as something of indefinite duration hanging over someone's head, and the period of three years seems to me appropriate. It has the effect, in particular, that certain consequences may follow if you fail without reasonable cause or excuse to comply with the conditions, and the primary consequence is that you are still liable to be dealt with. Is that clearly understood?

[The defendant acknowledged the explanation.]

As Sheppard J. put it in the case to which I have been referred of John Pontello v. Dennis Giannotia, in which he gave his reasons on 26 July 1989, when you are required to be of good behaviour for three years, that means what it says, and if you should transgress in any respect, and in particular

in respect of an offence under the co~vriaht Act - but not only in that respect, in any respect - you can be called here

again to be sentenced for these offences, as well as for any

other offence of which you may then be convicted. If that	does occur it is possible - and it is not a matter that I say
anything about one way or the other at this stage - but it is
possible that in respect of the present offences you will, after all, then be sentenced to a quite severe penalty (and imprisonment is one of the possible penalties), and I am sure your solicitor will emphasise that to you, but I have made it clear.
Well, the orders I make are, pursuant to s.20 of the Crimes Act 1914, 1 order that the defendant in respect of each matter be released, wlthout sentence being passed upon him on his entering into a recognizance in the sum of $1,000 on condition that he will be of good behaviour for a period of three years from today. I direct that the recognizance be taken before a registrar. Pursuant to s.133(4), I order that all infringing copies of cinematograph films, which were in the possession of the defendant and which are now in the possession of the Australian Federal Pollce, be destroyed. The exhibits may be returned.

I certify that this and the preceding five (5) pages
are a true copy of

of his Honour M r Justice Burchett.

Y'

Dated: 5 October 19 ,